Heatherington v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal by David Piri Heatherington against the respondent, The Queen. The applicant contended that a previous decision of the High Court in *Pollard v Reg* had determined specific interpretations of sections 464A and 464H of the *Crimes Act 1958* (Vic) concerning the recording of police questioning of suspects. The applicant argued that *Pollard* had established that police were not obligated to tape record every question and answer from the commencement of questioning, that the term "questioning" had a consistent meaning across the relevant sections, and that the inadmissibility of an unrecorded question did not automatically render all subsequent recorded questions and answers inadmissible.

The central legal issues before the High Court were the precise scope and effect of the decision in *Pollard v Reg* regarding the admissibility of evidence obtained during police questioning. Specifically, the applicant argued that *Pollard* had left open the question of whether separate periods of questioning could occur if the entire process took place in one location, over a short duration, involving a single investigator and suspect, in contrast to the formal interview that followed an unrecorded "lead-up" or "informal" interview. The applicant's contention was that *Pollard* had not definitively resolved how to address unrecorded preliminary interviews, which historically contained crucial admissions, before the introduction of compulsory tape recording.

The applicant's submission was that *Pollard* had established a notional majority on several points concerning the interpretation of the *Crimes Act 1958* (Vic) provisions on recording interviews. However, the applicant contended that *Pollard* had not determined the specific scenario of a continuous, unrecorded preliminary interview at a single location, distinct from a subsequent formal, recorded interview. This distinction between unrecorded "lead-up" questioning and recorded formal interviews was presented as a perennial problem in criminal law, which the current legislative framework, while generally excluding unrecorded lead-up interviews, had not fully resolved.